| Matter of Figueroa v Lewis |
| 2011 NY Slip Op 01272 |
| Decided on February 15, 2011 |
| Appellate Division, Second Department |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on February 15, 2011
MARK C. DILLON, J.P.
JOSEPH COVELLO
ANITA R. FLORIO
L. PRISCILLA HALL, JJ.
2010-04679
(Docket Nos. V-06363-09, V-06364-09)
v
Jacqueline Lewis, respondent. Yasmin Daley Duncan, Brooklyn, N.Y., for appellant. Michael G. Paul, New City, N.Y., attorney for the children.
DECISION & ORDER
In a visitation proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Dutchess County (Sammarco, J.), dated April 8, 2010, which, without a hearing, dismissed his petition to modify a prior order of visitation.
ORDERED that the order is affirmed, without costs or disbursements.
"Modification of an existing custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child[ren]" (Matter of Leichter-Kessler v Kessler, 71 AD3d 1148, 1148-1149; see Matter of Mazzola v Lee, 76 AD3d 531; Matter of Balgley v Cohen, 73 AD3d 1038; Matter of Riedel v Riedel, 61 AD3d 979; Matter of Molinari v Tuthill, 59 AD3d 722, 723). While "[i]n general, an evidentiary hearing is necessary regarding a modification of visitation" (Matter of Perez v Sepulveda, 51 AD3d 673, 673), one who seeks a change in visitation is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing (see Matter of Reilly v Reilly, 64 AD3d 660; Matter of Rodriguez v Hangartner, 59 AD3d 630, 630-631; Matter of Walberg v Rudden, 14 AD3d 572) and "a hearing will not be necessary where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child[ren's] best interest" (Matter of Hom v Zullo, 6 AD3d 536, 536; see Matter of Perez v Sepulveda, 51 AD3d at 673; Matter of Smith v Molody-Smith, 307 AD2d 364).
Here, the father failed to allege a sufficient change in circumstances between the time the order of visitation was issued and the filing of his petition which would warrant a hearing on the issue of whether he was entitled to supervised therapeutic visitation. Accordingly, the Family Court properly dismissed the petition (see Matter of Collazo v Collazo, 78 AD3d 1177; Matter of Varricchio v Varricchio, 68 AD3d 774, 775; Matter of Reilly v Reilly, 64 AD3d 660; Matter of Rodriguez v Hangartner, 59 AD3d at 631).
DILLON, J.P., COVELLO, FLORIO and HALL, JJ., concur.[*2]
ENTER:
Matthew G. Kiernan
Clerk of the Court